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Oshlack v Richmond River Council

Oshlack v Richmond River Council

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Case Copied 25 February 1994 21 min read

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LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

RECORD OF HEARING

______________________________________________________________

Coram:Stein J

Number:40090 of 1993

Matter:OSHLACK

v
RICHMOND RIVER COUNCIL
and

IRON GATES DEVELOPMENTS PTY LTD

Keywords: Costs - judicial review of development consent for subdivision -unsuccessful applicant - public interest litigation - practice of Court - special circumstances

Land and Environment Court Act 1979 s69(2)
Environmental Planning and Assessment Act 1979 ss4A, 77(3)(d1), 90

Hearing date: 18 February 1994

Judgment:ON COSTS RESERVED

Judgment date: 25 February 1994

Appearances:         Applicant       -       Mr I J Dodd (Sol)
Respondent 1   -      Ms S Winters
Respondent 2   -     Mr M L Brabazon

Solicitors:Applicant       -       Bartier Perry & Purcell
Respondent 1   -        D M Jones & Associates, Kyogle
Respondent 2   -        E J Cressy & Co

No of pages:17

IN THE LAND AND No 40090 of 1993

ENVIRONMENT COURT Coram: Stein J
OF NEW SOUTH WALES 25 February 1994

OSHLACK
v
RICHMOND RIVER COUNCIL
and
IRON GATES DEVELOPMENTS PTY LTD

JUDGMENT ON COSTS

On 22 December 1993 I dismissed a challenge by the applicant to the validity of a development consent granted by the first respondent (Richmond River Council) to the second respondent (Iron Gates Developments Pty Ltd). The consent concerned a 110 lot residential subdivision of land at Evans Head commonly known as "Iron Gates". Both the Council and the developer now seek orders that the applicant, Mr Al Oshlack, pay their costs of the application. They submit that costs should follow the event of the litigation determined in their favour. The applicant argues that each party should bear his and its own costs, submitting that there are special circumstances why the "normal rule" of costs being awarded to the successful party should not be followed. His attorney, Mr Ian Dodd, argues that part of the basis for costs not being awarded against his client flow from the public interest nature of the litigation.
The notion of public interest litigation has been gaining ground in Australia over the last decade. The concept derives from principles of public law rather than private. The development springs from the increasing access of individual members of the public and groups to approach the courts to seek to enforce aspects of Public Law. This is particularly so in the area of environmental law where many New South Wales statutes include open standing provisions enabling "any person" to seek to enforce breaches of the law (viz., Environmental Planning and Assessment Act 1979 (s123), Heritage Act 1977 (s153), National Parks and Wildlife Act 1974 (s176A), Wilderness Act 1987 (s27), Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (s10), Environmentally Hazardous Chemicals Act 1985 (s57) and more recently, the Local Government Act 1993 (s674).

The issue of the costs of such legal challenges may, of course, bear upon the ability of individuals and organisations to utilise these provisions. In an address to an International Conference on Environmental Law in 1989, Toohey J recognised this stating:-

"Relaxing the traditional requirements for standing may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1994] NSWLEC 20
Decision Date: 25 February 1994

CaseChat Overview and Summary

The case of Oshlack v Richmond River Council and Iron Gates Developments Pty Ltd concerns a challenge by Mr. Al Oshlack against the validity of a development consent granted by the Richmond River Council to Iron Gates Developments Pty Ltd for a residential subdivision on a site known as "Iron Gates." The Land and Environment Court of New South Wales dismissed the challenge, leading to the respondents seeking orders for the applicant to pay their costs. The applicant argued against such an order on the grounds that the litigation was of public interest, and thus, special circumstances warranted a departure from the usual rule that costs follow the event. The court examined the concept of public interest litigation, noting that the principle has gained ground in Australia, particularly in environmental law, where statutes often allow "any person" to seek enforcement of breaches. The court also considered international perspectives, such as a Draft European Community Directive and the United Kingdom Law Commission's Report, which suggested that costs should not deter individuals from enforcing environmental law in good faith.

The court reviewed several Australian cases, including decisions from the Land and Environment Court, to understand how it had approached the issue of costs in public interest litigation. It found that while the characterisation of proceedings as public interest litigation could be a factor, it was not sufficient on its own to constitute special circumstances warranting a departure from the ordinary rule. Instead, the court looked for additional factors, such as the arguability of the case, the public interest in the outcome, and the conduct of the parties. In this case, the court found that the subject matter of the litigation, the development of the Iron Gates site, was indeed of public interest. The applicant's challenge was arguable, raised significant issues of environmental law, and contributed to the understanding of the application of the law. Additionally, the applicant's motivation was purely public interest, seeking to uphold environmental law and preserve endangered fauna.

Given the public interest nature of the litigation, the arguability of the case, and the significant issues raised, the court found sufficient special circumstances to justify a departure from the ordinary rule as to costs. Consequently, no order for costs was made against the applicant.

Orders